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On the day of the Supreme Court judgment setting aside the "skin-to-skin" interpretation of sexual assault by the Bombay High Court, the Allahabad High Court also gave a glaringly erring order under the Protection of Children from Sexual Offences Act, 2012. Amidst the two contrasting decisions, SHWETA VELAYUDHAN and ALMAS SHAIKH break down the interpretations by all three Courts in the first part of this two-part series.
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A three-judge bench of the Supreme Court, by its judgment dated November 18, set aside the Bombay High Court judgment dated January 19 of this year, which held that "skin-to-skin contact" is necessary for sexual assault under the Protection of Children from Sexual Offences (POCSO) Act, 2012.
The Nagpur Bench of the Bombay High Court – in its January ruling delivered by Justice Pushpa V. Ganediwala – had held that in the absence of "direct physical contact" between the accused and the minor-prosecutrix, that is, "skin-to-skin with sexual intent without penetration", the accused would not be guilty of sexual assault under Section 7 of the POCSO Act.
A day after, the Attorney General of India, K.K. Venugopal mentioned the matter before the Supreme Court, terming the judgment as "disturbing". The Bench, led by then Chief Justice of India S.A. Bobde, stayed the acquittal of the accused under the POCSO Act. Now, vide its detailed order and judgment dated November 18, the Supreme Court has set aside the High Court's interpretation.
The Bombay high court decision was made in response to an appeal against an order dated February 5, 2020, passed by the Extra Joint Additional Sessions Judge (the Special Court), wherein the accused was convicted for the following offences:
Section 354 of the Indian Penal Code (IPC): Assault or criminal force to woman with intent to outrage her modesty.
Section 363 of the IPC: Punishment for kidnapping.
Section 342 of the IPC: Punishment for wrongful confinement.
Section 8 of the POCSO Act: Punishment for sexual assault.
On December 14, 2016, the mother of the prosecutrix lodged a report at the Gittikhadan Police Station in Nagpur, stating that the accused took the prosecutrix (then aged 12 years) to his house under the pretext of giving her a guava, and pressed her breast and attempted to remove her salwar. The mother of the prosecutrix reached the spot then and rescued her daughter, and thereafter filed the first information report (FIR).
He was subsequently acquitted of the offence under section 309 IPC. The Special Court convicted and sentenced him on the remaining charges.
Bombay High Courts's interpretation of sexual assault under the POCSO Act
The question for consideration before the Bombay high court was whether the "pressing of breast" and "attempt to remove salwar" would fall within the definition of sexual assault defined under section 7 of the POCSO Act, punishable with imprisonment for three to five years and fine under Section 8 of the POCSO Act.
Section 7 lays down thus:
"7. Sexual assault.—Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault."
The necessary ingredients, as per the High Court, of sexual assault involve:
or
making the child touch the vagina, penis, anus or breast of such person or any other person,
or
doing any other act with sexual intent which involves physical contact without penetration."
The high court observed that a "physical contact with sexual intent without penetration" would be an essential ingredient of the offence.
The Single-judge Bench further went on to observe that,
"Evidently, it is not the case of the prosecution that the appellant removed her top and pressed her breast… Considering the stringent nature of punishment provided for the offence, in the opinion of this Court, stricter proof and serious allegations are required. The act of pressing of breast of the child aged 12 years, in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of 'sexual assault'."
Instead, the act by the accused was held to fall within the definition of section 354 of IPC (assault or criminal force to woman with intent to outrage her modesty), and the conviction of the accused under this Section was upheld by the high court. The court acquitted the accused under section 8 of the POCSO Act, by holding that:
"Admittedly, it is not the case of the prosecution that the appellant removed her top and pressed her breast. As such, there is no direct physical contact i.e. skin to skin with sexual intent without penetration."
The accused was sentenced to undergo rigorous imprisonment for one year for the offence under section 354 of IPC, which is the minimum period of imprisonment thereunder. Separately, he was also sentenced to imprisonment for the offence under section 342 of IPC, and the sentences were to run concurrently.
Thereafter, four appeals were filed before the Supreme Court of India – by the Attorney General of India, the National Commission for Women (NCW), the State of Maharashtra and the accused. While senior advocate Geeta Luthra appeared on behalf of the NCW, the accused was represented by senior advocate Siddharth Luthra on behalf of the Supreme Court Legal Services Committee. Senior advocate Siddhartha Dave was the amicus curiae.
On behalf of the accused, Siddarth Luthra argued, among his other submissions, that while the phrases "sexual intent", "touches" and "physical contact" have not been defined under the POCSO Act, the explanation to Section 11 states that any question which involves "sexual intent" shall be a question of fact. The learned senior advocate, while conceding that the first part of Section 7, pertaining to the act of touching the private parts of the child, may not require "skin to skin contact", submitted that so far as the second part i.e. "the other act with sexual intent which involves physical contact without penetration" is concerned, the "skin to skin contact" is required to be proved by the prosecution.
In its analysis of the legal submissions put forth by the counsels, the three-judge Bench of the Supreme Court comprising Justices U.U. Lalit, Ravindra S. Bhat and Bela M. Trivedi reiterated the settled position of law that while interpreting a statute, the courts should strive to ascertain the intention of the legislature and accept the interpretation which promotes the object of the legislation and prevents its abuse.
The Court observed that the POCSO Act was enacted "to protect the children from the offences of sexual assault, sexual harassment and pornography and to provide for establishment of special courts for trial of such offences".
Interpretation of Section 7 of the POCSO Act
The Court split section 7 into two parts – first, mentioning the act of touching the specific sexual parts of the body with sexual intent, and the second, mentioning "any other act" done with sexual intent which involves physical contact without penetration.
Referring to the dictionary meaning of the words "touch" and "physical contact", the Court observed that, "[t]he word "Touch" has been used specifically with regard to the sexual parts of the body, whereas the word "physical contact" has been used for any other act. Therefore, the act of touching the sexual part of body or any other act involving physical contact, if done with "sexual intent" would amount to "sexual assault" within the meaning of Section 7 of the POCSO Act."
The Court rejected the defence's submission that the expression "physical contact" in Section 7 is to be construed as "skin to skin" contact, by applying the rule of construction contained in the maxim "Ut Res Magis Valeat Quam Pereat", meaning the construction of a rule should give effect to the rule rather than destroying it. The Court rejected a "narrow and pedantic interpretation" of the provision which would defeat its object.
The Court observed that, "[r]estricting the interpretation of the words "touch" or "physical contact" to "skin to skin contact" would not only be a narrow and pedantic interpretation of the provision contained in Section 7 of the POCSO Act, but it would lead to an absurd interpretation of the said provision. "skin to skin contact" for constituting an offence of "sexual assault" could not have been intended or contemplated by the Legislature." [emphasis supplied]
Not only does such an interpretation defeat the objective of protection of children from sexual abuse, but it would also lead to a very "detrimental situation", frustrating the very object of the statute, according to the Court.
Such an interpretation would exclude a case of touching the sexual or non-sexual parts of a child's body with gloves, condoms, sheets or with cloth, even when done with sexual intent, from the ambit of sexual assault under section 7, observed the Court.
The Court held that the most important ingredient for constituting the said offence is "sexual intent" and not "skin to skin" contact with the child.
Section 29 of the POCSO Act stipulates that when a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and 9 of the POCSO Act, the Special Court shall presume the commission, or abetment or attempt of the offence, unless the contrary is proved.
Whereas Section 30 permits the Special Court to presume, for any offence under the POCSO Act, which requires a culpable mental state on the part of the accused, the existence of such mental state. The accused can very well take a defence and prove that he had no such mental state with respect to the charged offence.
That being said, a fact is said to be proved under section 30 only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability. Further, the Explanation to Section 30 clarifies that "culpable mental state" includes intention, motive, knowledge of a fact, and the belief, or reason to believe, a fact.
In this case, the said presumption has not been rebutted by the accused by proving that he had no such mental state, observed the Court. Hence, the allegation of sexual intent as contemplated under section 7 of the POCSO Act stood proved by the prosecution.
Placing importance on the fact that the impact of traumatic sexual assault committed on children of tender age could endure during their whole life, and have an adverse effect on their mental state, the Court observed that the provisions of the POCSO Act, more particularly pertaining to sexual assault, sexual harassment and so on, have to be "construed vis-a-vis the other provisions" so as to make them more meaningful and effective.
The counsel on behalf of the accused had invoked the "rule of lenity" to submit that the Court resolve a statutory ambiguity in a criminal statute in favour of the accused, or to strictly construe the statute against the State. This was not accepted by the Court in view of the settled proposition of law that "the statutory ambiguity should be invoked as a last resort of interpretation. Where the Legislature has manifested its intention, courts may not manufacture ambiguity in order to defeat that intent."
The Court concluded that the learned High Court had "committed gross error in holding that the act of pressing of breast of the child aged 12 years in absence of any specific details as to whether the top was removed or whether he inserted his hands inside the top and pressed her breast, would not fall in the definition of sexual assault, and would fall within the definition of offence under Section 354 of the IPC. The High Court further erred in holding that there was no offence since there was no direct physical contact i.e. "skin to skin" with sexual intent."
“The Bombay High Court acquitted the accused by holding: "Admittedly, it is not the case of the prosecution that the appellant removed her top and pressed her breast. As such, there is no direct physical contact i.e. skin to skin with sexual intent without penetration."
The Supreme Court convicted the accused for the offences punishable under section 8 of the POCSO Act and under sections 342, 354 and 363 IPC, and sentenced him to rigorous imprisonment for a period of three years.
Justice S. Ravindra Bhat, in his concurring opinion, wherein he completely and unreservedly agreed with the findings of the judgment authored by Justice Trivedi, went on to make the following observations, with respect to interpretation of section 7 of the POCSO Act:
"The "other act" involving "physical contact" may involve: direct physical contact by the offender, with any other body part (not mentioned in the first limb) of the victim; other acts, such as use of an object by the offender, engaging physical contact with the victim; or in the given circumstances of the case, even no contact by the offender (the expression "any other act" is sufficiently wide to connote, for instance, the victim being coerced to touch oneself).
Parliamentary intent and emphasis, however, is that the offending behavior (whether the touch or other act involving physical contact), should be motivated with sexual intent. Parliament moved beyond the four sexual body parts, and covered acts of a general nature, which when done with sexual intent, are criminalized by the second limb of Section 7. The specific mention of the four body parts of the child in the first limb, and the use of the controlling expression "sexual intent" mean that every touch of those four body parts is
prima facie suspect."
On the same day as the Supreme Court judgment which held that "the most important ingredient for constituting the offence of sexual assault under Section 7 of the Act is the "sexual intent" and not the "skin to skin" contact with the child", the Allahabad High Court passed a judgment reducing the jail sentence of an accused under the POCSO Act from 10 years to 7 years, based on a seemingly incorrect application of the law.
“Such an interpretation would exclude a case of touching the sexual or non-sexual parts of a child's body with gloves, condoms, sheets or with cloth, even when done with sexual intent, from the ambit of sexual assault under section 7, observed the Supreme Court.
In this case, the accused forced a 10-year old boy to perform oral sex on him and discharged semen into his mouth.
Under the POCSO Act, while this falls within "penetrative sexual assault" under Section 3, since the child was under 12 years of age, the offence would fall within the ambit of "aggravated penetrative sexual assault" under Section 5(m).
This is punishable with a minimum of 10 years' rigorous imprisonment, which was imposed by the Trial Judge. However, during the appeal, the High Court incorrectly held that the act counts as "penetrative sexual assault". The order stated that,
"From the perusal of the provisions of the POCSO Act, it is clear that the offence committed by the appellant neither falls under Section 5/6 of the POCSO Act nor under Section 9(M) of the POCSO Act because there is penetrative sexual assault in the present case as the appellant has put his penis into the mouth of the victim. Putting penis into the mouth does not fall in the category of aggravated sexual assault or sexual assault. It comes into the category of penetrative sexual assault which is punishable under Section 4 of the POCSO Act…..I am of the considered opinion that the appellant should be punished under section 4 of the POCSO Act because the act done by appellant falls in the category of penetrative sexual assault".
The order incorrectly fails to consider the age of the victim, which made it possible to charge and convict the accused under the offence of aggravated penetrative sexual assault. This wrong reading of the law, coincides with the day of the expansive reading by the Supreme Court, which focused on staying true to the aims and objectives of the POCSO Act. A review or appeal of the order is of utmost importance.
Tomorrow: Part II of the Explainer – Interpreting sexual assaults: High Courts err because they place a high evidentiary burden on the victims
(Shweta Velayudhan is a corporate lawyer who consults in the field of labour and employment law and is a part of the outreach team at The Leaflet. Almas Shaikh is a human rights lawyer from India. She is currently reading for a D.Phil. in Law at the University of Oxford. The views expressed are personal.)
